MARCH MADNESS: An Unusual Case of Reverse Confusion

As we wrote about last year around this time, MARCH MADNESS is a term that is protected by trademark law. It is owned by the March Madness Athletic Association (MMAA), a joint venture between the NCAA and the Illinois High School Athletic Association (IHSA). The IHSA was actually first to begin using this mark to describe its high school basketball tournament in the 1940s.

Brent Musburger brought MARCH MADNESS to public attention in using that term to describe the NCAA college basketball tournament, during which many hearts are broken each year….if you are lucky enough to have a team that made it this far. (Northwestern came this close to its first NCAA appearance.)

Normally, this would be a case of so-called "reverse confusion," in which the junior user of a mark (here, the NCAA) is so much bigger than the senior user of the mark (the IHSA) that the public thinks the mark belongs to the junior user. In the typical reverse confusion case, the senior user can stop the junior user from using the mark. But that did not happen here. Why?

In the typical reverse confusion case, the junior user adopts the senior user’s mark and that can be stopped by the senior user. But here, the public began using MARCH MADNESS to refer to the NCAA tournament before the NCAA began using the term itself. The federal court that heard this trademark infringement action ruled that the IHSA could not stop the NCAA from using MARCH MADNESS because that term had entered the public domain as a nickname for the NCAA tournament before the NCAA adopted the mark itself. Accordingly, the court held that the mark was subject to dual use by both NCAA and IHSA, who now own it jointly through the MMAA.

What does this mean for broadcasters? It means your talent can discuss MARCH MADNESS all they like without fear of reprisal, so long as the term is not used to sell or promote goods or services. The NCAA may not be as aggressive in protecting MARCH MADNESS as the NFL is in protecting SUPER BOWL, but the unauthorized commercial use of either term is prohibited by trademark law. This means no "March Madness Sales" without authorization from the MMAA, which owns the trademark and related marketing rights to MARCH MADNESS.

About David Oxenford

David Oxenford represents broadcasting and digital media companies in connection with
regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. Continue Reading

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.